Bellwether v. Bizzyblog: Division Over Free Speech For Judges And The Brinkman Swipe

CINCINNATI (TDB) -- Bizzyblog's Tom Blumer delivered his brief today. Now the Bellwether offers a counterpoint in respectful disagreement and will quote the deeply conservative Supreme Court Justice Antonin Scalia: "For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law."

[UPDATE: 9:50 pm EDT 7/23/07 -- Weapons of Mass Discussion has been following the Ruehlman-Brinkman blowup. The Bellwether was remiss in not linking earlier, and hopefully makes amends. The blog has the coolest name in the Ohiosphere, and keeps a sharp eye on the treacherous shoals of politics and public affairs. WMD is correct that Brinkman-Ruehlman is not a one news cycle potboiler. It seems to have legs.]

The debate is joined over free speech for judicial officers in Ohio, and grows out of Hamilton County Common Pleas Judge Robert Ruehlman's censure from the bench last week of conservative Republican Ohio State Rep. Tom Brinkman.

The Bellwether finds itself in the camp of Justice Scalia, who clearly favors free speech for judges on matters of legal import. Ruehlman, a GOPer as is Brinkman, did not mince his words. He called Brinkman a "criminal" for allegedly changing signatures on referendum petitions that had been circulated to repeal a Cincinnati law promising equal rights to gays and lesbians. Brinkman was not charged with a crime, although the judge said his conduct was reprehensible. The links above cover all that territory.

Bizzyblog has taken the position that it is unethical for judges to have strong opinions, and cites enough canon-law to fill the cavernous cargo bay of an Air Force C-17. He marshalls his contention that judges should not disparage the people who appear in their courtrooms, or have matters pending, and that judges should be impartial, or somehow thoroughly above all frays -- though those are not his words. But they certainly appear to convey Bizzyblog's intent.

Over here at the Bellwether, the canons are not interpreted quite so tautly, and they are seen as a bit archaic, more akin to the slender freight bays of the C-47's that hauled materiel in World War II. The guiding principle -- at least in this instance about judicial freedom of expression -- comes from Justice Scalia, a man of opinion on and off the bench, a man with a reputation as garrulous and of being in accord with the political right as it exists in the United States.

Scalia, in 2002, wrote the opinion that squelched state attempts to limit what judges could say while they campaigned for office. Ethics rules had them censored, and Scalia led the Supreme Court majority that loosened those rules in a case originating from Minnesota. He said candidates for judge can have views on the law, and can speak publicly about what those views are. It is not a far jump from that to Ruehlman, who said the law governing elections in Ohio had been abused by Brinkman. Here's Scalia:

"Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. 'Proof that a Justices mind at the time he joined the Court was a complete tabula rosa in the area of constitutional adjudication would be evidence of a lack of qualification, not lack of bias.' (citing Justice Rehnquist) The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. And since avoiding judicial preconceptions on legal issues is neither possible or desirable, pretending otherwise by attempting to preserve the 'appearance' of that type of impartiality can hardly be a compelling state interest either."

There is more on this: Judges who are biased can be removed from cases, either by the parties in court complaining, the jurists' own recognition that they cannot be fair, or action of the Ohio Supreme Court, which has the power to step in and oust a judge whose mouth was out of order. So far, none of the parties with the election law case before Ruehlman have asked him to recuse himself.

A final note: Bizzyblog and I part ways on whether Judge Ruehlman was within his rights. But there won't be any name calling or eye-gouging or spitting, which all to often goes hand-in-hand with blog posts that take different sides on matters of public discourse. Perhaps I am more libertarian on matters of free speech for elected officials; perhaps he is more concerned about the issue of fairness to someone who is severely criticized by a high-ranking public official.